[COMMENT: One of the best
assessments of the religious freedom issue I have seen.

However, I think Reno is very mistaken to include
Islam in the potentially friendly camp below. There are friendly Muslims,
but they cannot be counted to stand up with us in a fire-fight -- unless they
are willing to aggressively go after the more traditional violent Muslims, to
openly disavow them, and turn them in to the authorities. They will pay a
terrific price, but we all will if we do not expose (love and truth Sword of the
Spirit) the evils in Islam, and not let the Johnny-come-lately "moderates" be
used as a Trojan Horse.
E. Fox]

About Imprimis

Imprimis is the free monthly speech digest of Hillsdale
College and is dedicated to educating citizens and promoting civil
and religious liberty by covering cultural, economic, political and
educational issues of enduring significance. The content of
Imprimis is drawn from speeches delivered to Hillsdale
College-hosted events, both on-campus and off-campus. First
published in 1972, Imprimis is one of the most widely
circulated opinion publications in the nation with over 2.6 million
subscribers.

Religion and Public Life in America

R. R. RENO is the editor of
First Things, a
journal of religion in public life. He received his B.A. from
Haverford College and his Ph.D. in religious studies from Yale
University, and taught theology and ethics at Creighton University
in Omaha, Nebraska, for 20 years. He is the author of Fighting the Noonday Devil,
Sanctified Vision,
and a commentary on the Book of Genesis, as well as a number of
other books and essays.

The following is adapted from a speech
delivered on February 20, 2013, at a Hillsdale College National
Leadership Seminar in Bonita Springs, Florida.

RELIGIOUS LIBERTY is being redefined in
America, or at least many would like it to be. Our secular
establishment wants to reduce the autonomy of religious institutions
and limit the influence of faith in the public square. The reason is
not hard to grasp. In America, “religion” largely means
Christianity, and today our secular culture views orthodox Christian
churches as troublesome, retrograde, and reactionary forces. They’re
seen as anti-science, anti-gay, and anti-women—which is to say
anti-progress as the Left defines progress. Not surprisingly, then,
the Left believes society will be best served if Christians are
limited in their influence on public life. And in the short run this
view is likely to succeed. There will be many arguments urging
Christians to keep their religion strictly religious rather than
“political.” And there won’t just be arguments; there will be laws
as well. We’re in the midst of climate change—one that’s getting
colder and colder toward religion.

Recent court cases and controversies
suggest trends unfriendly to religion in public life. In 2005, a
former teacher at Hosanna-Tabor Evangelical Lutheran Church and
School in Redford, Michigan, filed an employment lawsuit claiming
discrimination based on disability. The school fired her for
violating St. Paul’s teaching that Christians should not bring their
disputes before secular judges. The subsequent lawsuit revolved
around the question of whether a religious school could invoke a
religious principle to justify firing an employee. The school said
it could, drawing on a legal doctrine known as the ministerial
exception, which allows religious institutions wide latitude in
hiring and firing their religious leaders. It’s in the nature of
legal arguments to be complex and multi-layered, but in this case
the Obama administration’s lawyers made a shockingly blunt argument:
Their brief claimed that there should be no ministerial exception.

[Note: This claim is, of course, quite
consistent with their stance of atheism. Sadly, it is also
consistent with the almost universal collapse of Christian
intellectual credibility during the 19th and 20th centuries.
Christians are recovering very nicely in some small (number-wise)
but important areas -- such as
Intelligent Design. We need not be surprised when atheists
begin acting consistently with their beliefs. And beyond that,
there is an inherent irrationality to atheism -- as we see today.
They really do not have a good philosophical/metaphysical case, so
they tend now to bellow their way through a discussion.
Christians are slowly beginning to reason in very clear and powerful
ways. That improved (and Biblical) Christianity is still a
long way from the pulpits, but it will hopefully find its way there.
E. Fox]

The Supreme Court rejected this argument
in a unanimous 9-0 vote. But it’s telling nonetheless that lawyers
in the Justice Department wanted to eliminate this exception. Their
argument was straightforward: Government needs to have broad powers
to address the problem of discrimination—in this case disability—as
well as other injustices. Conceding too much to religious
institutions limits those powers. Why should the theological
doctrines of the Lutheran Church—Missouri Synod, or of any other
church, trump the legal doctrines of the United States when the
important principle of non-discrimination is at stake? It is an
arresting question, to say the least—especially when we remember
that the Left is currently pushing to add gay marriage to the list
of civil rights.

Concerns about the autonomy of religious
institutions are also at work in the Obama administration’s tussle
with the Catholic Church and her religious allies over the mandate
to provide free contraceptives, sterilization, and abortion-inducing
drugs. After the initial public outcry, the administration announced
a supposed compromise, which has been recently revised and
re-proposed. The Obama administration allows that churches and
organizations directly under the control of those churches are
religious employers and can opt out of the morally controversial
coverage. But religious colleges and charities are not and cannot.
To them, the administration offers a so-called accommodation.

The details are complex, but a recent
statement issued by Cardinal Dolan of New York identifies the key
issue: Who counts as a religious employer? It’s a question closely
related to the issue in the Hosanna-Tabor case, which asks who
counts as a religious employee. Once again the Obama administration
seeks a narrow definition, “accommodating” others in an act of
lčse majesté, as it were.
The Catholic Church and her allies want a broad definition that
includes Catholic health care, Catholic universities, and Catholic
charities. The Church knows that it cannot count on
accommodations—after all, when various states such as Illinois
passed laws allowing gay adoptions, they did not “accommodate”
Catholic charities, but instead demanded compliance with principles
of non-discrimination, forcing the Church to shut down her adoption
agencies in those jurisdictions.

Cardinal Dolan’s statement went still
further. For-profit companies are not religious in the way that
Notre Dame University is religious. Nonetheless, the religious
beliefs of those who own and run businesses in America should be
accorded some protection. This idea the Obama administration flatly
rejects. By their progressive way of thinking, economic life should
be under the full and unlimited control of the federal government.

Religious liberty is undermined in a
third and different way as well. For a long time, political
theorists like John Rawls have argued that our laws must be based on
so-called public reason, which is in fact an ambiguous, ill-defined
concept that gives privileged status to liberalism. In 2010, Federal
District Court Judge Vaughn Walker overturned Proposition 8—the
ballot measure that reversed the California Supreme Court’s 2006
decision that homosexuals have a right to marry—citing the lack of a
rational basis for thinking that only men and women can marry. “The
evidence shows conclusively,” he wrote, “that Proposition 8 enacts,
without reason, a private moral view that same-sex couples are
inferior to opposite-sex couples.” He continues by observing that
many supporters of Proposition 8 were motivated by their religious
convictions, which—following Rawls—he presumes should not be allowed
to govern public law.

This line of thinking is not unique to
Judge Walker. The influence of Rawls has been extensive, leading to
restrictions on the use of religious reasons or even
religiously-influenced reasons in public debate. In striking down
Texas sodomy laws, Supreme Court Justice Anthony Kennedy noted that
moral censure of homosexuality has “been shaped by religious
beliefs.” The idea seems to be that moral views historically
supported by religion—which of course means all moral views other
than modern secular ones—are constitutionally suspect.

Here we come to the unifying feature of
contemporary challenges to religious freedom—the desire to limit the
influence of religion over public life. In the world envisioned by
Obama administration lawyers, churches will have freedom as “houses
of worship,” but unless they accept the secular consensus they can’t
inspire their adherents to form institutions to educate and serve
society in accordance with the principles of their faith. Under a
legal regime influenced by the concept of public reason, religious
people are free to speak—but when their voices contradict the
secular consensus, they’re not allowed into our legislative chambers
or courtrooms.

Thus our present clashes over religious
liberty. The Constitution protects religious liberty in two ways.
First, it prohibits laws establishing a religion. This prevents the
dominant religion from using the political power of majority rule to
privilege its own doctrines to the disadvantage of others. Second,
it prohibits laws that limit the free exercise of religion. What
we’re seeing today is a secular liberalism that wants to expand the
prohibition of establishment to silence articulate religious voices
and disenfranchise religiously motivated voters, and at the same
time to narrow the scope of free exercise so that the new secular
morality can reign over American society unimpeded.

Rise of the Nones
This shift in legal thinking on the Left reflects underlying
religious trends. As the religious character of our society changes,
so do our assumptions about religious freedom. The main change has
been the rise of the Nones. In the 1950s, around three percent of
Americans checked the “none” box when asked about their religious
affiliation. That number has grown, especially in the last decade,
to 20 percent of the population. And Nones are heavily represented
in elite culture. A great deal of higher education is dominated by
Nones, as are important cultural institutions, the media, and
Hollywood. They are conscious of their power, and they feel the
momentum of their growth.

At the same time, the number of Americans
who say they go to church every week has remained strikingly
constant over the last 50 years, at around 35 percent. Sociologists
of religion think this self-reported number is higher than the
actual one, which may be closer to 25 percent. In any event, the
social reality is the same. As the Nones have emerged as a
significant cohort, the committed core of religious people has not
declined and in fact has become unified and increasingly battle
tested. Protestants and Catholics alike know they’re up against an
often hostile secular culture—and although a far smaller portion of
the population, the same holds for Jews and Muslims as well.

These two trends—the rise of the Nones
and the consolidation of the committed core of believers—have led to
friction in public life. The Nones and religious Americans collide
culturally and politically, not just theologically.

For a long time, the press has reported
on the influence of religious voters, especially Evangelicals.
Polling data shows that religiosity has become increasingly reliable
as a predictor of political loyalties. But what’s far less commonly
reported is that this goes both ways. In their recent book, American Grace: How Religion Divides and Unites Us,
Robert Putnam and William Campbell focused on the practice of saying
grace before meals as an indication of religious commitment and
found a striking correlation. Seventy percent of those who never say
grace before meals identify as Democrats, compared to slightly more
than 20 percent who identify as Republicans. Nones are extremely
ideological. Meanwhile, among those who say grace daily, 40 percent
identify as Democrats and 50 percent as Republicans. Religious
people are more diverse, but they trend to the political right, and
the more religious they are the more likely they are to vote
Republican.

Other data also suggests a growing divide
between the irreligious and religious. A recent Pew study confirms
that Nones are the single most ideologically committed cohort of
white Americans, rivaled only by Evangelical Protestants. They
overwhelmingly support abortion and gay marriage. Seventy-five
percent of them voted for Barack Obama in 2008, and they played a
decisive role in his victory in 2012. In Ohio, Obama lost the
Protestant vote by three percent and the Catholic vote by eleven
percent—and both numbers rise if we isolate Protestants and
Catholics who say they go to church every week. But he won the Nones,
who make up 12 percent of the electorate in Ohio, by an astounding
47 percent.

I think it’s fair to say that Obama ran a
values campaign last fall that gambled that the Nones would cast the
decisive votes. For the first time in American political history,
the winning party deliberately attacked religion. Its national
convention famously struck God from the platform, only to have it
restored by anxious party leaders in a comical session characterized
by the kind of frivolity that comes when people recognize that it
doesn’t really matter. Democratic talking points included the “war
on women” and other well-crafted slogans that rallied their base,
the Nones, who at 24 percent of all Democrat and Democratic-leaning
voters have become the single largest identifiable cohort in the
liberal coalition.

This presents the deepest threat to
religious liberty today. It’s not good when the most numerous and
powerful constituency in the Democratic Party has no time for
religion. This is all the more true when its ideology has the effect
of encouraging the rest of the party to view religion—especially
Christianity—as the enemy; and when law professors provide reasons
why the Constitution doesn’t protect religious people.

Religious Liberty Under the Gun
From the end of the Civil War until the 1960s, the wealthiest, best
educated, and most powerful Americans remained largely loyal to
Christianity. That’s changed. There were warning signs. William F.
Buckley, Jr. chronicled how Yale in the early ’50s could no longer
support even the bland religiosity of liberal Protestantism. Today,
Yale and other elite institutions can be relied upon to provide
anti-Christian propaganda. Stephen Pinker and Stephen Greenblatt at
Harvard publish books that show how Christianity pretty much ruins
everything, as Christopher Hitchens put it so bluntly. The major
presses publish book after book by scholars like Elaine Pagels at
Princeton, who argues that Christianity is for the most part an
invention of power hungry bishops who suppressed the genuine
diversity and spiritual richness of early followers of Jesus.

One can dispute the accuracy of the
books, articles, and lectures of these and other authors. This is
necessary, but unlikely to be effective. Experts savaged
Greenblatt’s book on Lucretius, The Swerve,
but it won the National Book Award for non-fiction. That’s not an
accident. Greenblatt and others at elite universities are serving an
important ideological purpose by using their academic authority to
discredit Christianity, whose adherents are obstacles not only to
abortion and gay rights, but to medical research unrestricted by
moral concerns about the use of fetal tissue, to new reproductive
technologies, to doctor-assisted suicide, and in general to
liquefying traditional moral limits so that they can be
reconstructed according to the desires of the Nones. Books by these
elite academics reassure the Nones and their fellow travelers that
they are not opposed to anything good or even respectable, but
rather to historic forms of oppression, ignorance, and prejudice.

I cannot overstate the importance of
these ideological attacks on Christianity. Our Constitution accords
us rights, and the courts cannot void these rights willy-nilly. But
history shows that the Constitution is a plastic document. When our
elite culture thinks something is bad for society as a whole, judges
find ways to suppress it. The First Amendment offered no protection
to Bob Jones University, which lost its tax-exempt status because of
a policy that prohibited inter-racial dating. As the Supreme Court
majority in 1983 wrote in that case: “Government has a fundamental,
overriding interest in eradicating racial discrimination in
education . . . which substantially outweighs whatever burden denial
of tax benefits places on [the University’s] exercise of their
religious beliefs.”

In recent years the Supreme Court has
been largely solicitous of religious freedom, sensing perhaps that
our cultural conflicts over religion and morality need to be kept
within bounds. But the law professors are preparing the way for
changes. Martha Nussbaum, who teaches at the University of Chicago
Law School, has opined that the colleges and universities run by
Catholic religious orders that require their presidents or other
leaders to be members of the order should lose their tax exempt
status, because they discriminate against women. She allows that
current interpretations of the First Amendment don’t support her
view, but that’s not much comfort. All Nussbaum is doing is applying
the logic of the Bob Jones case to the feminist project of
eradicating discrimination based on sex.

Former Georgetown law professor Chai
Feldblum—who is also a current Obama appointee to the Equal
Employment Opportunity Commission—has written about the coming
conflicts between gay rights and religious liberty. With an
admirable frankness she admits, “I’m having a hard time coming up
with any case in which religious liberty should win.” Again, the Bob
Jones case is in the background, as are other aspects of civil
rights law designed to stamp out racial discrimination. For someone
like Feldblum, when religious individuals and institutions don’t
conform to the new consensus about sexual morality, their freedoms
should be limited.

It is precisely the possibilities evoked
by Nussbaum and Feldblum that now motivate the Obama
administration’s intransigence about allowing places like Notre Dame
to be classified as religious employers. In the Bob Jones case, the
justices were very careful to stipulate that “churches or other
purely religious institutions” remain protected by the First
Amendment’s principle of free exercise. By “accommodating” rather
than counting Notre Dame and other educational and charitable
organizations as religious employers, secular liberalism can target
them in the future, as they have done to Catholic adoption agencies
that won’t place children with homosexual couples.

A recent book by University of Chicago
professor of philosophy and law Brian Leiter outlines what I believe
will become the theoretical consensus that does away with religious
liberty in spirit if not in letter. “There is no principled reason,”
he writes, “for legal or constitutional regimes to single out
religion for protection.” Leiter describes religious belief as a
uniquely bad combination of moral fervor and mental blindness,
serving no public good that justifies special protection. More
significantly—and this is Leiter’s main thesis—it is patently unfair
to afford religion such protection. Why should a Catholic or a
Baptist have a special right while Peter Singer, a committed
utilitarian, does not? Evoking the principle of fairness, Leiter
argues that everybody’s conscience should be accorded the same legal
protections. Thus he proposes to replace religious liberty with a
plenary “liberty of conscience.”

Leiter’s argument is libertarian. He
wants to get the government out of the business of deciding whose
conscience is worth protecting. This mentality seems to expand
freedom, but that’s an illusion. In practice it will lead to
diminished freedom, as is always the case with any thoroughgoing
libertarianism.

Let me give an example. The urban high
school my son attended strictly prohibits hats and headgear. It does
so in order to keep gang-related symbols and regalia out of the
school. However, the school recognizes a special right of religious
freedom, and my son, whose mother is Jewish and who was raised as a
Jew, was permitted to wear a yarmulke. Leiter’s argument prohibits
this special right, but his alternative is unworkable. The gang
members could claim that their deep commitments of loyalty to each
other create a conscientious duty to wear gang regalia. If
everybody’s conscience must be respected, then nobody’s will be, for
order and safety must be preserved.

* * *

The Arabic word
dhimmi means non-Muslim. Under Muslim rule,
non-Muslims were allowed to survive only insofar as they accepted
Muslim dominance. Our times are not those times, and the secularism
of the Nones is not Islam. Nevertheless, I think many powerful
forces in America would like to impose a soft but real dhimmitude. The liberal and
libertarian Nones will quarrel, as do the Shi’a and Sunni, but they
will, I think, largely unify against the public influence of
religion.

What can be done to prevent them from
succeeding?

First and most obvious—defend religious
liberty in the courts. Although I have depicted deep cultural
pressures that work against religious liberty, we live in a society
governed by the rule of law. Precedent matters, and good lawyering
can make a substantive difference.

Second—fight against the emerging legal
theories that threaten to undermine religious liberty. This is a
battle to be carried out in the law schools and among political
theorists. For decades, legal activists on the Left have been
subsidized by legal clinics and special programs run in law schools.
Defenders of religious liberty need to push back.

Third—fight the cultural battle. Legal
theory flexes and bends in accord with the dominant consensus. This
Brian Leiter knows, which is why he does not much worry about the
current state of constitutional law. He goes directly to the
underlying issues, which concern the role of religion in public
life.

We must meet the challenge by showing
that religion is indeed special. Religious people are the most
likely Americans to be involved in civic life, and the most generous
in their charitable contributions. This needs to be highlighted
again and again. Moreover, we need to draw a contrast with the Nones,
who tend to outsource their civic responsibilities and charitable
obligations to government in the form of expanded government
programs and higher taxes.

There is another, deeper argument that
must be made in defense of religion: It is the most secure guarantee
of freedom. America’s Founders, some of them Christian and others
not, agreed as a matter of principle that the law of God trumps the
law of men. This has obvious political implications: The Declaration
of Independence appeals to the unalienable rights given by our
Creator that cannot be overridden or taken away. In this sense,
religion is especially beneficial. As Popes John Paul II and
Benedict XVI both emphasized, it gives transcendent substance to the
rights of man that limit government. Put somewhat differently,
religion gives us a place to stand outside politics, and without it
we’re vulnerable to a system in which the state defines everything,
which is the essence of tyranny. This is why gay marriage, which is
sold as an expansion of freedom, is in fact a profound threat to
liberty.

Finally, we must not accept a mentality
of dhimmitude. The
church, synagogue, and mosque have a tremendous solidity born of a
communion of wills fused together in obedience to God. This gives
people of faith the ability to fight with white fury for what they
perceive to be a divine cause, which is of course a great force for
righteousness—but also a dangerous threat to social peace, as early
modern Europe knew only too well.

In conclusion, I want to focus not on
fury but on the remarkable capacity for communities of faith to
endure. My wife’s ancestors lived for generations in the contested
borderlands of Poland and Russia. As Jews they were tremendously
vulnerable, and yet through their children and their children’s
children they endured in spite of discrimination, violence, and
attempted genocide. Where now, I ask, are the Russian and Polish
aristocrats who dominated them for centuries? Where now is the
Thousand Year Reich? Where now is the Soviet worker’s paradise? They
have gone to dust. The Torah is still read in the synagogue.

The same holds for Christianity. The
Church did not need constitutional protections in order to take root
in a hostile pagan culture two thousand years ago.

Right now the Nones seem to have the
upper hand in America. But what seems powerful is not always so. If
I had to bet on Harvard or the Catholic Church, Yale or the
Mennonites in Goshen, Indiana, the New York
Times or yeshivas in Brooklyn, I wouldn’t
hesitate. Over the long haul, religious faith has proven itself the
most powerful and enduring force in human history.